815 F.

2d 125

Edward BUNDY, Jr., Plaintiff, Appellant,

v.
Richard A. WILSON, Superintendant, Cheshire County House
of
Correction, Defendant, Appellee.
Bryan COLPITT, Plaintiff, Appellant,
v.
Michael CUNNINGHAM, Warden, New Hampshire State
Prison,
Defendant, Appellee.
Nos. 86-1703, 86-1831.

United States Court of Appeals,

First Circuit.
Argued Jan. 7, 1987.
Decided March 20, 1987.

James E. Duggan with whom Joanne Green, Appellate Defender Program,

Concord, N.H., was on brief for plaintiffs, appellants.
John S. Davis with whom Stephen E. Merrill, Atty. Gen., and Robert B.
Muh, Asst. Atty. Gen., Criminal Justice Bureau, Concord, N.H., were on
brief for defendants, appellees.
Before BOWNES, Circuit Judge, ALDRICH, Senior Circuit Judge and
GIGNOUX,* Senior District Judge.
BOWNES, Circuit Judge.

In these consolidated cases, convicted felony defendants, Edward Bundy, Jr.,

and Bryan Colpitt, challenge the constitutionality of New Hampshire's appellate
process for criminal defendants. Appellants contend that their due process
rights were violated because the New Hampshire Supreme Court disposed of
their appeals without granting them access to an adequate trial record and a
meaningful opportunity to persuade the court that their appeals should be

accepted.
I.
2

Appellant Bryan Colpitt was convicted of robbery following a two-day jury

trial in Strafford County Superior Court. He was sentenced to serve two and
one-half to five years in the state prison. Colpitt filed a timely notice of appeal
in the New Hampshire Supreme Court. Colpitt's notice of appeal raised six
issues, including the trial court's refusal to conduct a mid-trial hearing on his
competency and its failure to strike three misstatements of the evidence
allegedly made by the prosecution during closing argument.

Appellant Edward Bundy was convicted of automobile theft by a jury in

Cheshire County Superior Court. He was sentenced to twelve months in jail,
with all but thirty days suspended. Bundy filed a notice of appeal challenging
the sufficiency of the evidence and the alleged encroachment of the trial judge
into the province of the jury by virtue of his answering "No" to its middeliberation question: "Does the law read that a person has to be driving a car to
be charged with theft?"

The notices of appeal filed by Bundy and Colpitt were reviewed by the New
Hampshire Supreme Court. The court disposed of their petitions for review in
accordance with New Hampshire Supreme Court Rule 7(1), which provides:
"The supreme court may, in its discretion, decline to accept an appeal from a
lower court after a decision on the merits, or may summarily dispose of such an
appeal as provided in rule 25." The court chose to dispose of appellants'
petitions for review by issuing a "declination of acceptance order." Such an
order issues when the New Hampshire Supreme Court "does not deem it
desirable to review the issues in a case...." N.H.Sup.Ct.R. 3. A declination of
acceptance order disposes of a defendant's appeal without any implication
regarding the court's views on the merits of the claim; it simply permits the
decision of the lower court to stand undisturbed. The New Hampshire Supreme
Court issues its declination of acceptance order on the basis of the notice of
appeal. A transcript normally does not accompany the notice of appeal. See
N.H.Sup.Ct.R. 15; Douglas, Summary Disposition: The New Hampshire
Supreme Court's Innovative and Unique Approach to Appellate Case
Processing, 27 N.H.B.J. 211, 215-16 (1986).1

Both appellants sought reconsideration of the supreme court's declination of

acceptance orders. Their motions were denied without explanation. They then
sought habeas relief in the United States District Court for the District of New
Hampshire under 28 U.S.C. Sec. 2254 (1982). Appellants advanced the same

issues in their habeas petitions as they had raised in their notice of appeal to the
New Hampshire Supreme Court, plus an additional claim challenging the
constitutionality of the declination process.
6

The district court ordered the State of New Hampshire to produce a transcript of
both proceedings. Both appellants, after reviewing the transcripts of their
respective trials, conceded that some of the issues they had pressed to the
supreme court and the district court were without merit. Colpitt, however,
continued to urge that he was erroneously denied a competency hearing by the
trial court. The district court, however, upheld the trial judge's refusal to hold a
competency hearing, noting that this decision was "amply supported by record
evidence." Bundy dropped his sufficiency of the evidence claim, but continued
to assert that the trial court had impermissibly invaded the province of the jury
by answering "No" to the question of whether a defendant must be driving a
stolen car to be guilty of automobile theft. Bundy argued that the judge's
answer constituted a resolution of the factual issue of whether Bundy exercised
sufficient control over the car to be guilty of theft. The district court held that
the jury's question did not reflect any uncertainty regarding a factual issue, but
was merely a request for guidance "as to whether it was permissible to find
[Bundy] guilty if he had not driven the automobile."

Neither Bundy nor Colpitt succeeded in persuading the district court that New
Hampshire's criminal appellate process was unconstitutional, 638 F.Supp. 1277.
Both appealed the district court's denial of habeas relief. The cases were
consolidated by order of this court on September 12, 1986.

II.
8

The fundamental issue is whether the New Hampshire Supreme Court's

declination of appeals procedure comports with the strictures of due process.
Appellants aver that, at a minimum, due process requires that criminal
defendants whose liberty is at stake be afforded a trial transcript or sufficient
substitute therefor and the right to submit a written argument to persuade the
supreme court to hear their cases on the merits. Appellants contend that they
cannot adequately present--nor can the supreme court fairly decide whether to
accept--their appeals, without an opportunity to consult a transcript and marshal
in writing the salient facts.

In its appellate brief to this court, the state has conceded the following:

10 the New Hampshire Supreme Court misapplied its own rules in declining to
(1)
review appellant Colpitt's conviction;

11 due process principles apply to the court's system of discretionary appellate

(2)
review;(3) in certain circumstances, due process requires, upon a sufficient showing
of need, that an appellant be afforded an opportunity to review and present to the
court relevant portions of the transcript of his trial prior to the court's decision
whether to accept the appeal;
12 appellant Colpitt, with respect to the issue of the competency hearing, made such
(4)
a showing of need in his notice of appeal and his motion to reconsider declination of
appeal; and
13 the New Hampshire Supreme Court violated appellant Colpitt's rights to due
(5)
process of law when it issued its declination order.
14

Brief for the State at ----.

15

The State thus concedes that the New Hampshire Supreme Court denied
appellant Colpitt due process by failing to afford him access to a transcript in
order to prepare and present his request for appellate review. Moreover, the
State implies that there may be other circumstances in which due process would
require providing criminal defendants with a transcript in order to have a
meaningful opportunity to persuade the court to accept their appeals. But while
the State concedes that there will be instances in which the normal operation of
New Hampshire's declination of acceptance procedure will lead to due process
violations, it does not share appellants' view that there is a systemic
constitutional infirmity. Indeed, the State hints that the principal cause of
Colpitt's due process violation was the New Hampshire Supreme Court's
"misapplication of its own rules." This is a far cry from appellants' contention
that constitutional defects inhere in the regular application of those rules.

16

In short, the State has conceded only that, as applied to appellant Colpitt, New
Hampshire's declination of acceptance procedure violates due process. The
State has made no such concession with respect to appellant Bundy. His
challenge to the constitutionality of New Hampshire's system of appeals for
criminal defendants is unaffected by the State's concession. Thus,
notwithstanding the State's posture toward appellant Colpitt, our inquiry must
still focus on whether the New Hampshire declination of acceptance procedure,
as presently administered, violates due process.

III.
17

Virtually every state in the country, as well as the District of Columbia and the
Commonwealth of Puerto Rico, grants felony criminal defendants an automatic

right to at least one full appeal on the merits.2 Most states provide criminal
defendants with automatic review in an intermediate court of appeals. The
supreme court in these states generally has discretion to accept cases after they
have been reviewed by the intermediate court of appeals. States which do not
have two tiers of appellate review provide criminal defendants with an appeal
as of right to the state supreme court. Virginia and West Virginia are the only
other states besides New Hampshire which do not provide felony criminal
defendants with an automatic right to an appeal on the merits. The procedural
protections afforded a criminal appellant in those states, however, underline the
solitariness of the New Hampshire system. In Virginia and West Virginia, a
criminal appeal cannot be rejected until an appellate court has fully examined
the relevant portions of the record and the defendant has been given a chance to
persuade a court of review, both orally and in writing, to hear the case.
18

New Hampshire is the only state in the nation which does not guarantee to all
felony criminal defendants, at a minimum, access to a transcript and an
opportunity for argument before disposition of their appeals. The New
Hampshire Supreme Court may dispose of a criminal appeal solely on the basis
of the information in the notice of appeal. The notice of appeal requires the
putative appellant to set forth:

19

(1) A "brief description" of the nature of the case and the result.

20

(2) The statute on which the case was based.

21

(3) The "specific questions to be raised on appeal, expressed in terms and

circumstances of the case but without unnecessary detail."

22

(4) A list of cases supporting the movant's position.

23

There may also be attached to the notice of appeal copies of pertinent

pleadings, motions, legal memoranda, statutory and constitutional texts, trial
court rulings, and any other relevant documents. The notice of appeal does not
ask for a statement of reasons or argument on the question of why an appeal
should be accepted.

24

Once the notice of appeal has been filed, the New Hampshire Supreme Court
utilizes a screening procedure to determine whether or not to hear the case on
its merits. "The standard governing the making of a declination decision is one
of sound judicial discretion with respect to the desirability of our hearing and
deciding the case." State v. Cooper, 127 N.H. 119, 125, 498 A.2d 1209, 1214

(1985). A single justice is assigned to review the notice of appeal and

recommend whether to accept the case, decline it, or summarily dispose of it
pursuant to New Hampshire Supreme Court Rule 25.3 Douglas The New
Hampshire Supreme Court's Approach to Appellate Case Processing, 27
N.H.B.J. at 215. The other four justices on the supreme court subsequently
review the recommendation of the screening justice. If the screening justice
suggests that the appeal be declined, his recommendation will be upheld unless
one of the other four justices disagrees.
25

The New Hampshire Supreme Court recently considered a challenge to the

constitutionality of its own procedures for criminal appeals in State v. Cooper,
127 N.H. 119, 498 A.2d 1209. The appellants-defendants in Cooper claimed
that the New Hampshire rules permitted the supreme court to decline appeals
arbitrarily and capriciously simply by invoking a vague standard of
"desirability." They also argued that the declination of acceptance procedure
fostered an irrational distinction between meritorious and nonmeritorious
appeals. Finally, the Cooper appellants asserted that the declination procedure
inhibits counsel from effectively assisting criminal defendants who seek review
in the New Hampshire Supreme Court.

26

The Cooper court stated that New Hampshire instituted a discretionary system
of appellate review because the supreme court's case load had "mushroomed in
recent years." 127 N.H. at 126, 498 A.2d at 1214. The court correctly
recognized that the Constitution does not grant a criminal defendant the right to
an appeal. 127 N.H. at 122, 498 A.2d at 1212. Accord Jones v. Barnes, 463
U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Abney v. United
States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977);
McKane v. Durston, 153 U.S. 684, 687-88, 14 S.Ct. 913, 914-15, 38 L.Ed. 867
(1894). It also properly noted that New Hampshire's criminal appeals system
must comport with the strictures of due process. State v. Cooper, 127 N.H. at
122, 498 A.2d at 1212. There can be no question that a discretionary criminal
appeals system is subject to the requirements of due process: "[W]hen a State
opts to act in a field where its action has significant discretionary elements, it
must nonetheless act in accord with the dictates of the Constitution--and, in
particular, in accord with the Due Process Clause." Evitts v. Lucey, 469 U.S.
387, 401, 105 S.Ct. 830, 838, 83 L.Ed.2d 821 (1985).

27

After acknowledging that New Hampshire's discretionary system of criminal

appeals was subject to federal due process standards, the state supreme court
indicated that those standards were less rigorous when applied to New
Hampshire because its system of criminal appeals is discretionary rather than
automatic. State v. Cooper, 127 N.H. at 123, 498 A.2d at 1213. The state

supreme court cited Evitts and Ross v. Moffit, 417 U.S. 600, 94 S.Ct. 2437, 41
L.Ed.2d 341 (1974), as support for this proposition. In Ross, the Supreme Court
ruled that due process and equal protection did not require the State of North
Carolina to provide an indigent defendant with counsel in a discretionary appeal
to the state supreme court. Vital to the Court's reasoning was its recognition
that North Carolina did provide counsel to criminal defendants who pursued
their automatic right of appeal to the state's intermediate appellate court. Id. at
613-16, 94 S.Ct. at 2445-47. Thus, the crucial distinction advanced in Ross is
not between discretionary appellate systems and automatic appellate systems.
Rather, the key difference considered in both Evitts and Ross concerned the
nature of constitutional protections in a single system which employed both a
first appeal as of right to an intermediate court, and a subsequent discretionary
appeal to the state supreme court. Evitts v. Lucey, 469 U.S. at 401-02, 105 S.Ct.
at 835-36; Ross v. Moffit, 417 U.S. at 613-16, 94 S.Ct. at 2445-47. Indeed, the
distinction between a first appeal of right and subsequent discretionary appeal
within the same appellate system has been made by the Court in other cases.
United States v. MacCollum, 426 U.S. 317, 324, 96 S.Ct. 2086, 2091, 48
L.Ed.2d 666 (1976); Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814,
816, 9 L.Ed.2d 811 (1963). The Court, however, has not drawn a line between
discretionary appellate systems and automatic appellate systems for the
purpose of gauging the degree of due process protection owed a criminal
appellant.
28

After asserting that discretionary appellate systems are subject to a less rigorous
due process standard than automatic appellate systems, the Cooper court
defended the constitutionality of the New Hampshire system by noting that its
standards for acceptance of an appeal are similar to those utilized by the state
supreme courts in Illinois and Tennessee. State v. Cooper, 127 N.H. at 126-27,
498 A.2d at 1215. The New Hampshire Supreme Court, however, failed to note
that both of those states provide a criminal defendant with a first appeal as of
right to an intermediate court of appeals. Thus, the court again drew a
conclusion regarding single-tiered discretionary appellate systems based on
jurisdictions with multi-tiered appellate systems which provided criminal
defendants with at least one appeal as of right.

29

We must note our disagreement with the New Hampshire Supreme Court's
conclusion that single-tiered discretionary appellate systems are subject to less
rigorous due process strictures than multi-tiered appellate systems providing at
least one appeal of right. The issue of whether the instant appellants are entitled
to a transcript and an opportunity to persuade the state supreme court to accept
their appeals does not turn on whether New Hampshire's appellate system is
discretionary or automatic. The pertinent due process question is whether

criminal appellants in New Hampshire are provided "an adequate opportunity

to present their claims fairly within the adversary system." Ake v. Oklahoma,
470 U.S. 68, 77, 105 S.Ct. 1087, 1094, 84 L.Ed.2d 53 (1985) (quoting Ross v.
Moffit, 417 U.S. at 612, 94 S.Ct. at 2444). We turn now to this question.
IV.
30

The fourteenth amendment's due process guarantee of fundamental fairness

requires states to provide a criminal defendant with "the opportunity to
participate meaningfully in a judicial proceeding in which his liberty is at
stake." Ake v. Oklahoma, 470 U.S. at 76, 105 S.Ct. at 1093. The Supreme
Court has stated that it is a criminal defendant's "access to the record which
makes any appellate review meaningful...." Gardner v. California, 393 U.S.
367, 368, 89 S.Ct. 580, 581, 21 L.Ed.2d 601 (1969). Accordingly, "there can be
no doubt that the State must provide an indigent defendant with a transcript
when that transcript is needed for an effective defense or appeal." Britt v. North
Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). Accord
Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971);
Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440
(1969); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601
(1969); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967);
Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290
(1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899
(1963); Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2
L.Ed.2d 1269 (1958); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.
891 (1956). The Court also has emphasized that the holdings in the line of cases
that began with Griffin, involving a criminal defendant's right of access to a
transcript, are rooted firmly in both the due process and equal protection
clauses of the fourteenth amendment. Evitts v. Lucey, 469 U.S. at 403-04, 105
S.Ct. at 839-40.

31

It is clear that the Court regards access to a transcript as an essential element for
ensuring that a criminal appellant has "an adequate opportunity to present his
claims fairly in the context of a State's appellate process." Id. at 402, 105 S.Ct.
at 839. Decisions of circuit courts of appeals in this area affirm this assessment.
See, e.g., Byrd v. Wainwright, 722 F.2d 716 (11th Cir.) (criminal defendant has
a constitutional right to a transcript in order to petition the state supreme court
for discretionary review of his conviction), cert. denied, 469 U.S. 869, 105
S.Ct. 217, 83 L.Ed.2d 147 (1984); Thompson v. Housewright, 741 F.2d 213
(8th Cir.1984); Oliver v. Zimmerman, 720 F.2d 766 (3d Cir.1983), cert. denied,
465 U.S. 1033, 104 S.Ct. 1302, 79 L.Ed.2d 701 (1984); United States ex rel.
Burton v. Greer, 643 F.2d 466 (7th Cir.1981); United States ex rel. Buford v.

Henderson, 524 F.2d 147 (2d Cir.1975), cert. denied, 424 U.S. 923, 96 S.Ct.
1133, 47 L.Ed.2d 332 (1976).
32

Having identified the constitutional significance which the Court attaches to a

criminal appellant's access to a transcript, we turn now to an evaluation of
whether New Hampshire's declination of appeals procedure violates due
process.

V.
33

The Supreme Court has identified three distinct factors that must be considered
when evaluating a claim of due process deprivation. First, the private interest
that is affected by the official action. Second, the risk of an erroneous
deprivation caused by the procedures used, and the probable value, if any, of
additional procedural safeguards. Third, the governmental interest at stake,
including the function involved and the fiscal and administrative burden
engendered by additional procedural requirements. Mathews v. Eldridge, 424
U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

A.
34

The private interest at stake here is the appellants' "opportunity to participate

meaningfully in a judicial proceeding in which [their] liberty is at stake." Ake
v. Oklahoma, 470 U.S. at 76, 105 S.Ct. at 1093. The appellants seek to guard
their interest in an accurate disposition of their appeals by obtaining procedural
protections that will provide them with a full and fair opportunity to present
their cases for review, and thus ensure the proper functioning of the adversary
system. See Gardner v. California, 393 U.S. at 369, 89 S.Ct. at 582. The
Supreme Court has recognized that such an interest is of paramount importance:
"The private interest in the accuracy of a criminal proceeding that places an
individual's life or liberty at risk is almost uniquely compelling." Ake v.
Oklahoma, 470 U.S. at 78, 105 S.Ct. at 1094.

35

We note that the "uniquely compelling" interest at stake here carries even
greater significance because appellants have only one chance, at the discretion
of the New Hampshire Supreme Court, to obtain state appellate review of
alleged errors that led to their incarceration.4

B.
36

The risk of an erroneous deprivation of felony defendants' interests in fairly and

meaningfully presenting their appeals is heightened immeasurably by the

failure to afford them a transcript. A transcript is "the most basic and

fundamental tool" of effective appellate advocacy. Hardy v. United States, 375
U.S. 277, 288, 84 S.Ct. 424, 431, 11 L.Ed.2d 331 (1964) (Goldberg, J.,
concurring). Our discussion in Section IV manifests the importance with which
the Supreme Court regards access to a transcript. The Court has instructed that
the due process mandate of fundamental fairness requires states to furnish
criminal appellants with a trial transcript or an adequate substitute. E.g., Britt v.
North Carolina, 404 U.S. at 227-30, 92 S.Ct. at 433-35; Draper v. Washington,
372 U.S. at 496, 83 S.Ct. at 779; Griffin v. Illinois, 351 U.S. at 20, 76 S.Ct. at
591; see also Evitts v. Lucey, 469 U.S. at 403-05, 105 S.Ct. at 840-41
(emphasizing the due process roots of Griffin and its progeny). An adequate
substitute for a transcript is a document which would "place before the
appellate court an equivalent report of the events at trial from which the
appellant's contentions arise." Draper v. Washington, 372 U.S. at 495, 83 S.Ct.
at 778.
37

The Court's solicitude regarding the furnishing of transcripts not only stems
from the necessity of granting a criminal appellant a meaningful and fair
opportunity to present his appeal; it also derives from a concern with ensuring
that appellate courts have a full and accurate understanding of an appellant's
contentions before dispensing with his appeal. Such concern pertains here
regardless of the fact that the New Hampshire Supreme Court is not bound,
either by the Constitution or its own rules, to actually decide the merits of an
appeal. The New Hampshire Supreme Court has stated that the "right to appeal
in New Hampshire is limited to the right to obtain a discretionary determination
by this court as to whether it will accept the appeal." State v. Cooper, 127 N.H.
at 124, 498 A.2d at 1213. This discretionary determination, however, cannot be
made without regard for the constraints of due process. Evitts v. Lucey, 469
U.S. at 401, 105 S.Ct. at 838-39. To the extent that due process requires
safeguards to assure the fair and accurate disposition of official proceedings,
those safeguards must be heeded regardless of the fact that the proceedings are
undertaken at the discretion of the government. Id.; see also Goldberg v. Kelly,
397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970).

38

The facts of the instant appeals illustrate the dual justification for providing
criminal appellants with transcripts. Appellant Colpitt alleged on appeal that he
was entitled to a mid-trial competency hearing. The suasive force of Colpitt's
claim was undercut by his inability to point to statements made on the record
which cast doubt on his competency.5 In addition, the New Hampshire Supreme
Court could not fully and accurately assess Colpitt's need for a mid-trial
competency hearing without examining the evidence which called into question
his mental capacity.

39

Appellant Bundy's state court appeal alleged claims of insufficient evidence

and improper invasion of the jury's province by the trial judge. Although
Bundy later dropped his claim regarding sufficiency of the evidence, it is
axiomatic that an appellant cannot meaningfully present such a claim without
pointing to the specific areas where the prosecution failed to meet its
evidentiary burden. As appellate court judges, we are mindful of the skepticism
which is engendered by bald assertions of insufficient evidence unsupported by
any citation to specific portions of the record. We realize, as already noted, that
the New Hampshire Supreme Court is not bound to decide the merits of
whether the evidence sufficed to convict Bundy. But the court cannot decide to
decline criminal defendants a full review on the merits of their appeals "without
first granting them a 'record of sufficient completeness' to permit proper
consideration of their claims." Draper v. Washington, 372 U.S. at 499, 83 S.Ct.
at 780;6 see also Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917,
921, 8 L.Ed.2d 21 (1962). Due process thus prohibits the New Hampshire
Supreme Court from arbitrarily and capriciously deciding to decline to consider
Bundy's sufficiency of the evidence claim. The state supreme court necessarily
must make at least a rough assessment that the evidence is sufficient in order
for its decision to accord with due process. We think it impossible for a
reviewing court to make even a rough assessment of the sufficiency of the
evidence without some reference to the trial court record. The accuracy of this
rough assessment is especially important in New Hampshire for it will most
likely determine the "desirability" of accepting the appeal.

40

Bundy's other state appellate claim, which he has continued to press, involved
an alleged infringement into the province of the jury by the trial judge when he
answered "No" to its question of whether "the law read[s] that a person has to
be driving a car to be charged with theft?". Without an opportunity to make
references to the record, Bundy's counsel was hard-pressed to support his
assertion that the judge's answer resolved a factual question for the jury.
Standing alone, the judge's answer appears to be nothing more than a correct
statement of the law. The record reveals, however, that Bundy was only a
passenger in the car when it was stolen and that the jury had requested another
instruction regarding "exercising control." In short, the record shows that the
jury was struggling to resolve the factual question of whether Bundy had
exercised enough control over the car to be adjudged guilty of theft. Thus, a
colorable claim could be advanced that the jury regarded the judge's answer to
the question as obviating further exploration of the crucial factual element in
the case. The plausibility of this argument could not, however, be advanced
effectively without an opportunity to make appropriate citations to the record.

41

We also are of the opinion that appellants' interest in meaningfully and fairly

presenting their claims was curtailed severely by New Hampshire's failure to

allow felony criminal defendants an opportunity to persuade the court to accept
their appeals. The New Hampshire notice of appeal form is, by its own terms, a
summary document which requests only a "brief description of the case," and a
recitation of the basis for the appeal "without unnecessary detail." Thus, not
only are criminal appellants unable to marshal coherently the salient facts in
their case because of the lack of a transcript, but, in addition, the language of
the notice of appeal form discourages them from attempting to persuade the
state supreme court to hear their appeals. Yet it is that very form which serves
as the basis for the court's decision to accept or refuse the case.
42

We think that the failure to provide criminal appellants with a transcript, and
the perfunctory outline of the basis for the appeal required by the notice of
appeal, seriously threatens the interest of criminal defendants in obtaining
meaningful review in New Hampshire's appellate system. The State's
concession with respect to appellant Colpitt, and the situation of appellant
Bundy, illustrate the real and continuing risk of an erroneous deprivation of a
defendant's due process rights inherent in the current manner of administering
New Hampshire's declination of acceptance procedure.

C.
43

The third due process factor identified in Mathews focuses on the governmental
interest at stake, as well as the fiscal and administrative burden of imposing
additional procedures. The State interest implicated here is the speedy and
efficient disposition of New Hampshire's appellate case load. New Hampshire
contends that the supreme court's growing case load prohibits it from providing
criminal defendants with a transcript and an opportunity to submit a brief
written statement which attempts to persuade the court to accept their appeals.
This claim is seriously undermined by the fact that every other state in the
union which employs a single-tiered system of appeals can manage its case load
while providing criminal defendants with more opportunity for appellate
review than is sought by the appellants here.

44

New Hampshire's interest in the speedy and efficient disposition of its appellate
case load "is necessarily tempered by its interest in the fair and accurate
adjudication of criminal cases." Ake v. Oklahoma, 470 U.S. at 79, 105 S.Ct. at
1094-95. Thus, to a significant degree, the governmental interest implicated
here overlaps the private interest which is at stake. Accordingly, New
Hampshire's interest in denying a criminal appellant a transcript and a brief
written argument "is not substantial, in light of the compelling interest of both
the State and the individual in accurate dispositions." Id.

45

We may wonder whether the administrative efficiency component of the State

interest at stake here actually may be helped, rather than hindered, by adopting
the additional procedural safeguards sought. Providing felony defendants with a
transcript and an express opportunity to persuade the court to accept the appeal
would reduce the need to attach a lengthy appendix composed of pleadings,
motions and other documents. Thus, the New Hampshire Supreme Court would
have a concise document on hand to aid its determination of whether to accept
or decline an appeal. Moreover, the availability of a transcript might help
reduce the court's work load by enabling counsel to eliminate seemingly
colorable claims whose actual meritlessness is revealed from an examination of
the record. In the instant case, both Bundy and Colpitt dropped some of their
claims after consulting the transcript made available to them by the federal
district court. In any event, whatever the impact on administrative efficiency, it
is of no great significance when compared to the importance of the interest
advanced by appellants.

D.
46

In sum, an examination of the Mathews factors indicates that we are faced with
a "uniquely compelling" private interest; a relatively insubstantial state interest
that might actually be advanced by adopting the additional procedures
suggested here; and a serious risk of a deprivation of appellants' interest in a fair
and meaningful opportunity to participate in New Hampshire's appellate
process. Accordingly, we hold that the New Hampshire Supreme Court's
declination of the state court appeals brought by the instant appellants violated
their due process rights, because the decision was made without giving
appellants a transcript or an opportunity to persuade the court to accept their
appeals.

VI.
47

As currently administered, the New Hampshire Supreme Court's declination of

acceptance procedure violates the constitutional rights of felony defendants
who assert appellate claims which have their basis in the record. The
fundamental fairness guaranteed by the due process clause requires that such
defendants be granted a transcript, or an adequate written substitute, and an
opportunity to submit a brief written statement specifically focusing on why
their appeals should be accepted.

48

Such requirements fall far below the procedural protections afforded criminal
appellants in every other state in the country. Moreover, these requirements
cannot be equated with granting criminal defendants an appeal as of right. The

New Hampshire Supreme Court is still free to decline to accept cases. It cannot
do so, however, until criminal appellants have been afforded the procedural
protections delineated here.
49

Of course, not all criminal appellants will be entitled to a transcript. Those who
assert appellate claims which do not arise out of any of the events at trial will
not need recourse to the record to fairly and meaningfully present arguments
why their appeals should be accepted. Thus, for example, a challenge to the
sufficiency of the indictment or a question of statutory interpretation will not
usually necessitate the production of a transcript. Every criminal defendant who
has been convicted of a felony is, however, entitled to an opportunity to
persuade the New Hampshire Supreme Court, via a written statement, to accept
his appeal.

50

Even if a criminal defendant asserts an appellate claim which requires recourse

to a transcript, he is not necessarily entitled to the full transcript. A defendant's
right to a transcript can be satisfied by providing him with a written substitute
that reports the portions of the trial which underlie his appellate contentions.
Draper v. Washington, 372 U.S. at 495, 83 S.Ct. at 778; see also Britt v. North
Carolina, 404 U.S. at 229, 92 S.Ct. at 434; Mayer v. City of Chicago, 404 U.S.
at 194-95, 92 S.Ct. at 414-15; Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir.1982). In
some cases, other types of substitutes might suffice. For instance, where a
defendant appeals a denial of a motion to suppress evidence, a joint statement of
facts may satisfy his right of access to the record. The threshold requirement is
that a criminal appellant be provided with "a record of sufficient completeness
to permit proper consideration of his claims." Mayer v. City of Chicago, 404
U.S. at 194, 92 S.Ct. at 414 (quoting Draper v. Washington, 372 U.S. at 499, 83
S.Ct. at 780). If a criminal appellant claims he must have access to the full
transcript, he does not bear the burden of demonstrating the inadequacy of
alternatives proposed by the State or suggested by a court in hindsight. Britt v.
North Carolina, 404 U.S. at 230, 92 S.Ct. at 435. Instead, when the grounds of
his appeal indicate "a colorable claim for a complete transcript, the burden is
on the State to show that only a portion of the transcript or an alternative will
suffice for an effective appeal on those grounds." Mayer v. City of Chicago,
404 U.S. at 195, 92 S.Ct. at 415.

VII.
51

The judgment of the district court is vacated and the cause is remanded to that
court with directions to issue the writs of habeas corpus unless within ninety
days of the date of this judgment the New Hampshire Supreme Court agrees to
accept from each appellant a brief written argument as to why his appeal should

be accepted. There is no need to order the State to furnish the appellants with
trial transcripts in this instance because they were ordered by the district court
for the habeas proceedings and have been available to the appellants.
52

So Ordered.

53

Costs awarded to appellants.

APPENDIX
54

Summary of the right to appeal by criminal defendants in the United States, the
District of Columbia and the Commonwealth of Puerto Rico.

ALABAMA
55

The right to appeal is granted by ALA.CODE Sec. 12-22-130 (1986). There is

an appeal of right from the District Court to the Circuit Court for a trial de
novo. ALA.CODE Sec. 12-11-30 (1986). The Court of Appeals has exclusive
jurisdiction to hear criminal appeals from the Circuit Court. ALA.CODE Sec.
12-3-9 (1986). Further review in the Supreme Court is discretionary.
ALA.CODE Secs. 12-2-2, 12-3-14 (1986).

ALASKA
56

There is an appeal of right from the District Court to the Superior Court.
ALASKA STAT. Sec. 22.10.020(e) (Supp.1986). If, however, the case is not
appealable to the Superior Court, then there is an appeal of right to the Court of
Appeals. ALASKA STAT. Sec. 22.07.020 (1982). If an appeal does not lie to
the Court of Appeals, then the defendant has a right to appeal to the Supreme
Court. ALASKA STAT. Sec. 22.05.010(b) (1982). There is discretionary
review by the Supreme Court from the Court of Appeals. ALASKA STAT.
Sec. 22.05.010(d) (1982).

ARIZONA
57

The state's constitution provides the right to appeal to all criminal defendants.
ARIZ. CONST. art. 2, Sec. 24. The Court of Appeals has jurisdiction over all
criminal appeals except when the penalty is death, in which case the Supreme
Court has jurisdiction. ARIZ.REV.STAT.ANN. Sec. 13-4031 (Supp.1986).
Review by the Supreme Court of cases heard in the Court of Appeals is
discretionary. ARIZ.R.CRIM.P. 31.19 (noted in ARIZ.REV.STAT.ANN. vol.
17 (Supp.1986)).

ARKANSAS
58

Criminal defendants have a right to appeal to the Court of Appeals.

ARK.STAT.ANN. Sec. 43-2701 (1977); ARK.R.CRIM.P. 36.1; ARK.S.CT.R.
29.1.b. (noted in vol. 3A of ARK.STAT.ANN. (Supp.1985)). Further review to
the Supreme Court is discretionary. ARK.S.CT.R. 29.6 (noted in vol. 3A of
ARK.STAT.ANN. (Supp.1985)). Cases involving sentences of death, life
imprisonment and thirty or more years of imprisonment are appealed directly to
the Supreme Court. ARK.S.CT.R. 29.1.b.

CALIFORNIA
59

There is an appeal of right from all lower courts to the Appellate Department of
the Superior Court. CAL. PENAL CODE Sec. 1466 (West Supp.1987). If the
original trial is in the Superior Court, then an appeal of right lies to the Court of
Appeals. CAL. CONST. art. 6, Sec. 11; CAL. PENAL CODE Sec. 1237
(Supp.1987). Cases in which the sentence was death go directly to the Supreme
Court. CAL. CONST. art. 6, Sec. 12(d); CAL. PENAL CODE Sec. 1235 (West
Supp.1987). Further review by the Supreme Court is discretionary. CAL.
CONST. art. 6, Sec. 12(b).COLORADO

60

An appeal of right is granted by COLO.REV.STAT. Sec. 16-12-101 (1986), to

the Court of Appeals, COLO.REV.STAT. Sec. 13-4-102 (Supp.1986). The
Supreme Court reviews Court of Appeals decisions at its discretion.
COLO.APP.R. 50 (noted in COLO.REV.STAT. vol. 7A (Supp.1984)).

CONNECTICUT
61

An appeal of right lies to the Supreme Court, CONN.GEN.STAT.ANN. Sec.

54-95 (West 1985), from the Superior Court, the sole trial court,
CONN.GEN.STAT.ANN. Sec. 51-164s (West 1985).

DELAWARE
62

An appeal of right lies to the Superior Court in all criminal cases involving
sentences of more than one month in jail or fines greater than $100. DEL.
CONST. art. IV, Sec. 28; DEL.CODE ANN., tit. 11 Secs. 5301, 5701 (1974). A
criminal defendant convicted in the Superior Court has a right to appellate
review in the Supreme Court. DEL. CONST. art. IV, Sec. 11(1)(b).

FLORIDA

63

Defendants have an appeal of right. FLA.STAT.ANN. Secs. 924.05, 924.06

(West 1985). The Supreme Court takes all death penalty cases, otherwise its
review is discretionary. FLA. CONST. art. 5, Sec. 4(2). The District Court of
Appeals and the Circuit Court split the remaining cases. FLA. CONST. art. 5,
Secs. 5(3), 6(3).

GEORGIA
64

Defendants have an appeal of right to the Court of Appeals. GA. CONST. Sec.
2-3103; GA.CODE ANN. Sec. 6-901 (Harrison Supp.1986). The Supreme
Court, however, hears death penalty cases directly. GA. CONST. Sec. 2-3203.
All other appeals to the Supreme Court are discretionary. GA. CONST. Sec. 23205.

HAWAII
65

Defendants have the right to appeal to the Supreme Court, HAWAII

REV.STAT. Secs. 641-11, -12 (Supp.1984), which can then transfer cases to
the Intermediate Court of Appeals, HAWAII REV.STAT. Sec. 602-5(8)
(Supp.1984). The Supreme Court may hear at its discretion any case from the
Intermediate Court of Appeals. HAWAII REV.STAT. Sec. 602-5(9)
(Supp.1984).

IDAHO
66

Defendants have the right of appeal to the Supreme Court. IDAHO CODE Sec.
19-2801 (1979); IDAHO APP.R. 11(c) (Supp.1986). Under IDAHO CODE
Sec. 1-2406 (Supp.1983), the Supreme Court may transfer any appeal except
death penalty cases to the Court of Appeals. The Supreme Court has
discretionary review from the Court of Appeals. IDAHO CODE Sec. 1-2409
(Supp.1983).

ILLINOIS
67

The state constitution grants the right to appeal. The Appellate Court hears all
appeals. ILL. CONST. art. 6, Sec. 6. Further review to the Supreme Court is
discretionary. ILL. CONST. art. 6, Sec. 4(c). Death penalty cases are appealed
directly to the Supreme Court. ILL. CONST. art. 6, Sec. 4(b).

INDIANA
68

The state constitution guarantees the right to one appeal. IND. CONST. art. 7,

Sec. 6. The Supreme Court must take all cases involving sentences of death, life
in prison and imprisonment of more than ten years. IND. CONST. art. 7, Sec. 4.
The Supreme Court has assigned all other appeals to the Court of Appeals.
IND.APP.PROC.R. 4(B) (Burns Supp.1986).
IOWA
69

A defendant has the right to appeal in all cases except simple misdemeanors
(crimes punishable by less than 30 days and less than $100, IOWA CODE
ANN. Sec. 903.1(1)(A) (West Supp.1986)), and ordinance violations. IOWA
CODE ANN. Sec. 814.6(1) (West 1979). All appeals are taken to the Supreme
Court which can then transfer them to the Court of Appeals. IOWA CODE
ANN. Secs. 602.4102(2), 602.5103 (West Supp.1986). The Supreme Court
hears appeals from the Court of Appeals at its discretion. IOWA CODE ANN.
Sec. 602.4102(4) (West Supp.1986).

KANSAS
70

KAN.STAT.ANN. Sec. 22-3602 (Supp.1986) gives all defendants a right to

appeal. The Supreme Court hears appeals from class A and B felonies,
KAN.STAT.ANN. Sec. 22-3601(b) (1982), while the Court of Appeals hears
all other appeals, KAN.STAT.ANN. Sec. 22-3601(a) (1982). Supreme Court
review from the Court of Appeals is discretionary. KAN.S.CT.R.APP.PRAC.
8.03 (noted in vol. 2A, KAN.STAT.ANN. (Supp.1986)).

KENTUCKY
71

The Kentucky Constitution gives all defendants the right to an appeal. KY.
CONST. Sec. 115 (Supp.1986). The Supreme Court hears all cases involving
sentences of death, life in prison and twenty years or more in jail. KY. CONST.
Sec. 110(2)(b) (Supp.1986). The Court of Appeals hears all other appeals,
unless an appeal has already been provided by another court, in which case
review is discretionary. KY.REV.STAT.ANN. Sec. 22A.020 (Bobbs-Merrill
1985). The Supreme Court has discretion to review cases heard by the Court of
Appeals. KY. CONST. Sec. 110(2)(b); KY.R.CIV.P. 76.20; KY.R.CRIM.P.
12.02.

LOUISIANA
72

LA.CODE CRIM.PROC.ANN. art. 911 (West 1984) provides defendants with

the right to appeal. Death penalty cases go to the Supreme Court. LA.CODE
CRIM.PROC.ANN. art. 912.1(A) (West Supp.1987). Any case in which the

defendant had the right to a jury is heard by the Court of Appeals. LA.CODE
CRIM.PROC.ANN. art. 912.1(B) (West Supp.1987). Cases in which the
defendant had no right to a jury are by writ of review with a full record.
LA.CODE CRIM.PROC.ANN. art. 912.1(C) (West Supp.1987).
MAINE
73

ME.REV.STAT.ANN. tit. 15, Sec. 2115 (1964) grants the right to appeal to the
Supreme Judicial Court. There is also an appeal as of right to the Superior
Court in certain misdemeanor cases. ME.REV.STAT.ANN. tit. 15, Sec. 2114
(Supp.1986).

MARYLAND
74

All defendants have an appeal of right to the proper court. MD.CTS. &
JUD.PROC.CODE ANN. Sec. 12-301 (1984). The Court of Appeals
(Maryland's highest court) must hear all death penalty cases. MD.CTS. &
JUD.PROC.CODE ANN. Sec. 12-307(4) (1984). The Court of Special Appeals
hears all other appeals. MD.CTS. & JUD.PROC.CODE ANN. Sec. 12-308
(1984). There is also an appeal of right to the Circuit Court from inferior courts.
MD.CTS. & JUD.PROC.CODE ANN. Secs. 12-301, 12-401, 12-403 (1984).

MASSACHUSETTS
75

There is an appeal of right for all defendants to either the Supreme Judicial
Court, MASS.GEN.LAWS ANN. ch. 278, Sec. 28 (West 1981), or to the
Appeals Court, MASS.GEN.LAWS ANN. ch. 211A, Sec. 10 (West
Supp.1986). There is also a right to appeal from the District Court to the
Superior Court for a new trial with a jury. MASS.GEN.LAWS ANN. ch. 278,
Sec. 18 (West 1981). There is discretionary review from the Appeals Court to
the Supreme Court. MASS.GEN.LAWS ANN. ch. 211A, Sec. 11 (West
Supp.1986).

MICHIGAN
76

MICH.COMP.LAWS ANN. Sec. 770.3 (West 1986) provides the right to

appeal: subsection (a) provides for appeals of right from the Circuit Court to the
Court of Appeals in felony and misdemeanor cases; subsection (b) grants
appeals of right from the District Court to the Circuit Court; subsection (c)
provides for appeals from the Detroit Trial Court to the Detroit Court of
Record; and subsection (d) provides for appeals via a new trial from a
municipal court to a circuit court. Review by the Supreme Court is

discretionary. MICH.COMP.LAWS ANN. Sec. 600.215 (West 1986);

MICH.CT.R.APP.P. 7.302(F).
MINNESOTA
77

The right to appeal is provided for in the Rules of Criminal Procedure. The
Court of Appeals hears all appeals except first degree murder cases.
MINN.CRIM.PROC.R. 28.02 (subd.2) (West 1987). First degree murder cases
go directly to the Supreme Court. MINN.CRIM.PROC.R. 29.02 (subd.1) (West
1987). Appeals from the Court of Appeals to the Supreme Court are
discretionary. MINN.CRIM.PROC.R. 29.02 (subd.2) (West 1987).

MISSISSIPPI
78

There is a right to appeal to the Supreme Court from the Circuit Court,
MISS.CODE ANN. Sec. 99-35-101 (1972), with an appeal via a new trial from
the trial court to the Circuit Court for those cases not originating in the Circuit
Court, MISS.CODE ANN. Sec. 99-35-1 (1972).

MISSOURI
79

The right to appeal is in MO.ANN.STAT. Sec. 547.070 (Vernon 1953). The

Supreme Court hears all death penalty cases directly, while all other appeals go
first to the Court of Appeals. MO. CONST. art. 5, Sec. 3.

MONTANA
80

The right to appeal is granted to all defendants by MONT.CODE ANN. Sec.

46-20-104 (1985). The Montana Supreme Court hears such appeals.

NEBRASKA
81

The state constitution gives all felony defendants the right to appeal to the
Supreme Court. NEB. CONST. art. I, Sec. 23. Misdemeanor cases are granted
discretionary appellate review. NEB.REV.STAT. Secs. 29-2301, 2305
(Supp.1984).

NEVADA
82

Criminal defendants with cases originating in the Justice's Court may appeal to
the District Court. NEV.REV.STAT. Sec. 177.015(1)(a) (1986). All defendants
have a right to appeal from the District Court to the Supreme Court.

NEV.REV.STAT. Sec. 177.015(1)(b) (1986).

NEW HAMPSHIRE
83

See Opinion.

NEW JERSEY
84

A defendant has the right to appeal to the Appellate Division of the Superior
Court, N.J.R.APP.PRAC. 2:2-3(a)(1) (West 1987), or to the Superior Court
from courts of limited criminal jurisdiction, N.J.R.CRIM.PRAC. 3:23-1 (West
1987). The Supreme Court, however, must hear all death penalty cases. N.J.
CONST. art. 6, Sec. 5; N.J.R.APP.PRAC. 2:2-1(a) (West 1987). Other review
by the Supreme Court is discretionary. N.J.R.APP.PRAC. 2:2-1(b) (West
1987).

NEW MEXICO
85

The state constitution grants the right to at least one appeal. N.M. CONST. art.
6, Sec. 2; see also N.M.STAT.ANN. Sec. 39-3-3(A) (1978). The Supreme
Court takes all cases involving the death penalty or life in prison directly. N.M.
CONST. art. 6, Sec. 2. The Court of Appeals handles all other appeals.
N.M.STAT.ANN. Sec. 34-5-8(A)(3) (Supp.1986). There is also an appeal of
right from all lower courts to the District Court for a new trial.
N.M.STAT.ANN. Sec. 39-3-1 (1978). Other review by the Supreme Court is
discretionary. N.M.STAT.ANN. Sec. 34-5-14 (1978).

NEW YORK
86

There is a right of appeal to the Supreme Court Appellate Division in all cases,
N.Y.CRIM.PROC.LAW Sec. 450.10(1) (McKinney Supp.1987), except those
involving the death penalty which go directly to the Court of Appeals (New
York's highest court), N.Y.CRIM.PROC.LAW Sec. 450.70 (McKinney 1983).
There is a discretionary appeal from the Appellate Division to the Court of
Appeals. N.Y.CRIM.PROC.LAW Sec. 450.90 (McKinney 1983).

NORTH CAROLINA
87

There is an appeal of right to the Court of Appeals in all cases,

N.C.GEN.STAT. Sec. 7A-27(b) (1986), except death penalty cases which go
directly to the Supreme Court, N.C.GEN.STAT. Sec. 7A-27(a) (1986). From
the Court of Appeals, review is discretionary unless there was a dissent in the

Court of Appeals, in which case review is automatic. N.C.GEN.STAT. Sec.

7A-30 (1986).
NORTH DAKOTA
88

N.D.CENT.CODE Secs. 29-28-02, 29-28-03, 29-28-06 (1974) gives all

defendants a right to appeal to the Supreme Court.

OHIO
89

All criminal defendants have the right to appeal to the Court of Appeals. OHIO
CONST. art. IV, Sec. 3; OHIO REV.CODE ANN. Sec. 2953.05 (Page 1982).
The Supreme Court must take directly all death penalty cases; it has discretion
to review cases heard by the Court of Appeals. OHIO CONST. art. IV, Secs.
(2)(B)2(a)(ii), (e).

OKLAHOMA
90

There is an appeal of right to the Court of Criminal Appeals for all defendants.
OKLA.STAT.ANN. tit. 22, Sec. 1051(a) (West 1986). The constitution does
not allow further review to the Supreme Court. OKLA. CONST. art. VII, Sec.
4; see also Hurst v. Pittman, 90 Okla.Cr. 329, 213 P.2d 877, 882 (1950).

OREGON
91

There is an automatic appeal to the Court of Appeals in all criminal cases.

OR.REV.STAT. Sec. 138.040 (1985). Further review by the Supreme Court is
discretionary. OR.REV.STAT. Secs. 2.520, 19.210, 138.255 (1985).

PENNSYLVANIA
92

There is an appeal of right in all criminal cases. PA.CONST.STAT.ANN. tit.

42, Sec. 5105(a) (Purdon 1981); see also PA. CONST. art. 5, Sec. 9. The
Supreme Court hears all death penalty cases directly, PA.CONST.STAT.ANN.
tit. 42, Sec. 722(4) (Purdon 1981), and hears appeals of all cases that originated
in the Commonwealth Court, PA.CONST.STAT.ANN. tit. 42, Sec. 723(a)
(Purdon Supp.1986). All other review by the Supreme Court is discretionary.
PA.CONST.STAT.ANN. tit. 42, Sec. 724(a) (Purdon 1981). The Court of
Common Pleas cases go to the Superior Court for review.
PA.CONST.STAT.ANN. tit. 42 Sec. 742 (Purdon 1981). Appeals which do not
go to the Superior Court are heard by the Commonwealth Court.
PA.CONST.STAT.ANN. tit. 42, Secs. 762(a)(2), (4), (b) (Purdon 1981 &

Supp.1986).
RHODE ISLAND
93

Criminal defendants have a right to appeal from the Superior Court to the
Supreme Court. R.I.GEN.LAWS Secs. 9-24-1, 9-24-11, 9-24-32 (1985);
R.I.Sup.Ct.R. 4(b) (1976). Criminal defendants whose cases originate in the
District Court have a right to appeal to the Superior Court for a trial de novo.
R.I.GEN.LAWS 12-22-1 (1981).

SOUTH CAROLINA
94

The Supreme Court hears all death penalty cases directly, S.C.CODE ANN.
Sec. 18-9-20 (Law.Co-op.1976), while all other defendants have the right to
appeal cases to the Court of Appeals, S.C.CODE ANN. Secs. 14-8-200, 14-8206 (Law.Co-op.Supp.1985). Further reivew to the Supreme Court is
discretionary. S.C.CODE ANN. Sec. 14-8-210 (Law.Co-op.Supp.1985).

SOUTH DAKOTA
95

All defendants have an appeal of right to the Supreme Court. S.D.CODIFIED

LAWS ANN. Sec. 23A-32-2 (1979).

TENNESSEE
96

A defendant has the right to an appeal. TENN.R.CRIM.P. 37(a), (b);

TENN.R.APP.P. 3(b). The Court of Criminal Appeals hears all appeals except
those concerning the constitutionality of a statute which go directly to the
Supreme Court. TENN.CODE ANN. Sec. 16-5-108 (1980). Other review by
the Supreme Court is discretionary. TENN.R.APP.P. 11.

TEXAS
97

All defendants have the right to at least one appeal. TEX.CODE

CRIM.PROC.ANN. art. 44.02 (Vernon 1979) (repealed in part by
TEX.REV.CIV.STAT. art. 1811f, Secs. 1, 4 (Vernon Supp.1987), but not the
defendant's substantive right to at least one appeal). The Court of Criminal
Appeals hears all death penalty cases directly, TEX. CONST. art. 5, Sec. 5, and
hears all other appeals at its discretion, TEX.CODE CRIM.PROC.ANN. art.
4.04 (Vernon Supp.1987). The Court of Appeals hears all other appeals.
TEX.CODE CRIM.PROC.ANN. art. 4.03 (Vernon Supp.1987).

UTAH
98

The state constitution gives all defendants a right to appeal. UTAH CONST.
art. I, Sec. 12; see also UTAH CODE ANN. Sec. 77-1-6 (1982). The Supreme
Court takes directly appeals which do not lie to either the District Court or
Court of Appeals. UTAH CONST. art. VIII, Sec. 5, UTAH CODE ANN. Sec.
78-2a-3 (Supp.1986). Other review by the Supreme Court is discretionary.
UTAH CODE ANN. Sec. 78-2-2 (Supp.1986).

VERMONT
99

VT.STAT.ANN. tit. 13, Sec. 7401 (1974) and VT.R.CRIM.P. 32(a)(2) grant all
defendants the right to an appeal to the Supreme Court.

VIRGINIA
100 Felony defendants convicted in the Circuit Court may petition for an appeal to
the Court of Appeals. VA.CODE ANN. Sec. 17-116.05:1.A (Supp.1986). After
the record has been filed with the Court of Appeals, a criminal defendant
presents to that court a written petition for review which details the merits of
his appeal. VA.S.CT.R. 5A:12, 5A:20, 5A:6-5A:10. The defendant is also
granted an oral opportunity to persuade a panel of the Court of Appeals to
accept his appeal. VA.S.CT.R. 5A:12(d). A felony criminal defendant whose
petition for review is denied by the Court of Appeals may present a similar
petition on the same record to the Virginia Supreme Court; he is also granted
an oral opportunity to persuade the Supreme Court to decide the merits of his
case. VA.CODE ANN. Sec. 17-116.07 (Supp.1986); VA.S.CT.R. 5:17.
Appeals in death penalty cases do not lie to the Court of Appeals, but are
presented directly to the Supreme Court. VA.CODE ANN. Secs. 17116.05:1.B, 17-110.1 (Supp.1986).
WASHINGTON
101 The state constitution grants all defendants the right to appeal. WASH.
CONST. art. 1, Sec. 22. The Supreme Court hears all death penalty cases
directly, WASH.REV.CODE ANN. Sec. 10.95.100 (Supp.1987); the Court of
Appeals hears all other appeals, WASH.REV.CODE ANN. Sec. 2.06.030
(Supp.1987). Further review to the Supreme Court is discretionary.
WASH.REV.CODE ANN. Sec. 2.06.030 (Supp.1987).
WEST VIRGINIA

102 Under W.VA.CODE Sec. 58-5-1(j) (1966), a defendant may appeal in all
criminal cases. The Supreme Court may reject an appeal for any reason.
W.VA.R.APP.P. 7. It may do so, however, only after reviewing a petition for
appeal which details the appellant's legal arguments, consulting some or all of
the record if so requested by petitioner, and offering the petitioner an
opportunity for oral argument on why the case should be heard.
W.VA.R.APP.P. 3, 4, 5. If the Supreme Court rejects an appeal for any reason
other than that the judgment or order is "plainly right," the petitioner may,
within a specified period of time, reapply for a determination of the appeal.
W.VA.R.APP.P. 7(b).
WISCONSIN
103 WIS.STAT.ANN. Secs. 809.30 (felonies), 809.40 (misdemeanors) (West
Supp.1986) grants all defendants the right to an appeal. Appeals are to the
Court of Appeals, WIS.STAT.ANN. Sec. 808.03 (West Supp.1986), with
discretionary review in the Supreme Court, WIS.STAT.ANN. Sec. 809.62
(West Supp.1986).
WYOMING
104 The right to appeal is granted to all criminal defendants in Wyoming.
WYO.STAT. Secs. 7-12-101, 7-12-201 (1977); WYO.R.APP.P. 1.03, 1.04; cf.
WYO.R.CRIM.P. 33(a)(2) (defendants must be notified of their right to appeal
upon sentencing).
PUERTO RICO
105 All defendants have the right to appeal from the Superior Court to the Supreme
Court, P.R.R.CRIM.P. 193, and from the District Court to the Superior Court,
P.R.R.CRIM.P. 216(a).
DISTRICT OF COLUMBIA
106 D.C.CODE ANN. Sec. 11-721(b) (1981) makes all convictions appealable to
the D.C. Court of Appeals except when a fine of less than $50 is levied on an
offense that has a maximum punishment of one year in jail and a $1,000 fine,
D.C.CODE ANN. Sec. 11-721(c) (1981).

Of the District of Maine, sitting by designation

The author of the article is a former Associate Justice of the New Hampshire
Supreme Court and was on the court when Rule 7(1) was adopted

See Appendix for a compilation of criminal appellate review procedures in all

of the states, the District of Columbia and the Commonwealth of Puerto Rico

The Rule 25 method of summary disposition of appeals differs from the

declination of acceptance procedure in that the decision is on the merits of the
case unless the supreme court lacks jurisdiction. N.H.Sup.Ct.R. 25. In Smith v.
Goodnow, No. C83-120-L (D.N.H. Sept. 26, 1983), the District Court of New
Hampshire held that it violated due process to apply the Rule 25 procedure to a
criminal appeal in which a claim of insufficiency of the evidence was asserted.
The court held that due process did not permit the supreme court to decide on
the merits that the evidence was sufficient, when it had not actually reviewed
the record. The court, however, intimated that the Constitution would not be
offended if the state supreme court declined to hear the case without reaching
the merits

The State attempts to disparage the importance of the interest at stake here by
noting the availability of other post-conviction remedies, such as habeas
corpus, to correct alleged trial errors. Such remedies have no bearing on the
determination of whether New Hampshire has offered appellants "an adequate
opportunity to present [their] claims fairly within the context of the State's
appellate process." Evitts v. Lucey, 469 U.S. at 402, 105 S.Ct. at 839.
Moreover, we reject the intimation that a petition for habeas corpus can serve
as a substitute for meaningful state appellate review of a defendant's conviction.
We are, however, aware that the federal district court in New Hampshire has, to
some degree, been transformed into a state appellate court as a result of the
state supreme court's utilization of the declination of acceptance procedure. A
federal district court entertaining a habeas petition brought by a state prisoner
under Sec. 2254 normally orders the production of a transcript of petitioner's
trial, if one is not already available. Thus, New Hampshire state prisoners are
apt to receive a fuller opportunity to present their claims for review via a
habeas petition than through the state appeal process. As a state-advanced
remedy for the inadequacy of its own procedures, this not only places a burden
on the federal government, but is contrary to the principle that a defendant must
first exhaust his state rights. We have never heard it suggested before that
habeas corpus was an excuse for not protecting them

For example, when Colpitt was asked why he was in downtown Farmington,
New Hampshire (the scene of the crime), he responded:
A: Everything was crazy that afternoon and that, but I had enough sense in my

head that I fairly well knew what I was doing and that, and even though a lot of
outer forces and that were really bothering me and that, I never could
understand that town.
Q: What do you mean by that?
A: Very, very conflictive town. Conflicting. In every way. No matter who you
are you get conflictions.
6

The criminal defendants in Draper, like those here, were denied a full review on
the merits of their appellate claims by the state supreme court. The Draper
petitioners had sought review by certiorari in the Supreme Court of Washington
of the trial court's refusal to furnish them with a transcript of their trial so that
they could pursue their appellate claims. Pursuant to Washington law, the trial
court refused to provide them with a transcript because it had found their
appellate contentions to be frivolous. 372 U.S. at 492-93, 83 S.Ct. at 777-78.
Petitioners sought review by certiorari of the trial court's denial of their
transcript applications. The Washington Supreme Court quashed the writ,
affirming the trial court's finding of frivolity and thus effectively denying
petitioners an opportunity for a full review on the merits of their appellate
claims. Washington v. Long, 58 Wash.2d 830, 365 P.2d 31 (1961). The United
States Supreme Court ruled that "the Washington Supreme Court could not
deny petitioners' request for review of the denial of the transcript motion
without a 'record of sufficient completeness' to permit proper consideration of
their claims." Draper, 372 U.S. at 499, 83 S.Ct. at 780. The court's decision in
Draper derived from its earlier holding in Griffin v. Illinois, which, as we have
already noted, was rooted in both the due process and equal protection clauses.
Evitts v. Lucey, 469 U.S. at 401-02, 105 S.Ct. at 839